QUERIN LAW: Fair Housing – Familial Status and Disabilities

iStock_000010654155SmallThe laws against discrimination have been in existence ever since the Fair Housing Act (Title VIII of the Civil Rights Act of 1968) was passed in 1968 and will not be discussed in this chapter. However, in 1989 the Act was amended by adding two new protected classes that, in Oregon, create much more litigation than the other classes already existing in the Fair Housing Act.

The Fair Housing Amendments Act (“FHAA”) went into effect on March 12, 1989.  That Act amended the Fair Housing Law, which prohibited discrimination based on race, color, religion, sex or national origin in the sale, rental, or financing of residential housing.  The FHAA added the following two protected classes: (1) Persons with children (known as “familial status”), and (2) Persons with disabilities.  Children include all persons under the age of 18 years.

Virtually all forms of “familial discrimination” became illegal under the FHAA, such as the refusal to rent to tenants because they had children; imposing different terms or conditions of rental depending upon whether they had children; discouraging persons from living in apartments or manufactured housing communities if they had children, etc.

The FHAA created certain “safe harbors;” the primary one was the 55+ age exemption.  On May 3, 1999, the Housing for Older Persons Act (HOPA) became effective.  HOPA substantially relaxed the earlier highly restrictive – and unworkable – requirements initially established by the FHAA for housing providers to qualify for the 55+ exemption. Under the FHAA and HOPA, a housing provider may now, without fear of violating the law, legitimately refuse to rent or sell to persons with families, if the provider properly qualifies under the 55+ exemption.

Currently, in order to qualify for the 55+ exemption under the FFHA and HOPA, a community must:

  • Be intended and operated for persons age 55 or over; and
  • Have at least one person who is 55 years of age or older living in at least 80% of its occupied units.
  • Publish and adhere to policies and procedures that demonstrate an intent to be operated as a 55+ community.
  • Comply with HUD age verification of occupancy procedures to substantiate compliance with the requirement that 80% of the facility be intended to be occupied by at least one person age 55 or over.

Tip: It is important that for all 55+ apartments, condominiums, and manufactured housing communities, all age/occupancy requirements be properly reflected in the written rules and policies – and be consistently applied.

The second major protected class that was added by the FFHA, disability, has equally proven to be a hotbed of litigation, due to the breadth of what constitutes a “disability.”[1]  Thus, landlords have frequently been asked to approve pets or additional occupants that would normally violate the facility’s rules, but for the fact that the resident couches the request in the form of an “assistance animal” or “care provider.”  This is due to the FFHA requirement that landlords, homeowner associations and manufactured housing communities make “reasonable accommodations” when requested by a person with a disability. The type of satisfactory accommodation can be very subjective, but does not mean that the housing provider must incur substantial financial hardships to accommodate a request.[2]

Tip: Care should be exercised when drafting rules and regulations in rental facilities, condominiums, and manufactured housing communities, etc. to avoid rules that could be deemed discriminatory – e.g. charging a pet fee for an assistance animal; refusing to make a simple accommodation (e.g. wheelchair ramp or closer parking space) for a disabled person.  In some cases, it may be easier to meet the request than to contest the validity of the underlying claimed disability.

[1] Under the FHAA, HUD defines a disability as follows: “Any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.”

[2] In 2004, HUD and the Department of Justice published a Joint Statement to provide technical guidance for dealing with reasonable accommodation request.